Tanveer Ahmad Malik vs Union Territory Of J&K And Another
2022 Latest Caselaw 51 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                     (Through Virtual Mode)

                                               WP(Crl) No. 141/2021

                                               Reserved on : 28.01.2022
                                               Pronounced on : 07.02.2022

Tanveer Ahmad Malik                                             ....Petitioner(s)

                Through :- Mr. B.A. Tak, Advocate
        V/s
Union Territory of J&K and another                           ....Respondent(s)

                Through :-   Mr. M.A. Chashoo, AAG

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                                 JUDGMENT

1. District Magistrate, Anantnag, has, vide detention Order bearing No.

32/DMA/PSA/DET/2021 dated 13.08.2021 placed Tanveer Ahmad Malik

S/o Ab. Gani Malik R/o Wani Mohalla Dooru District Anantnag (detenu)

under preventive detention and directed his lodgement in Central Jail,

Kotbhalwal, Jammu. It is this order, petitioner has challenged in this

petition and seeks quashment thereof on grounds averred therein.

2. Counter affidavit has been filed in opposition to the petition and also

detention record has been produced.

3. Heard learned counsel for the parties and considered the matter.

4. Learned counsel for the petitioner has, to augment the case set up by the

petitioner in the petition on hand contended that the order of detention

impugned herein is illegal, unconstitutional and bad in the eyes of law

which has been passed in breach of mandate of law. It is also averred that

the detaining authority has not attributed any specific allegation against

the detenue. Further, the detenue was not supplied the entire material so as

to file an effective representation before the Government or the detaining

authority. The petitioner further averred that the detention order has

neither approved in time nor reference made to the Advisory Board within

the stipulated period and even the advisory board has not given its opinion

within the stipulated period as provided under the statute. It is also averred

that the detaining authority has booked the detenue in case FIR No. 98 of

2020 under Sections 18, 20 & 38 of ULAP of Police Station, Dooru in

which the detenue was already under custody of the police, therefore,

there is no question of passing the impugned detention order. Further

contended that the detenue has not applied for bail in the FIR No. 98/2020

nor the bail was granted by the competent authority in favour of the

detenue, therefore, there was no requirement of passing the detention

order.

5. Per contra, learned counsel for the respondents insists that detention order

has been passed on subjective satisfaction by the detaining authority and

detention order is in accordance with law and there is no violation or

infringement of rights guaranteed under the Constitution of India. Hence,

he exhorts dismissal of petition.

6. Given the case set up and submissions made by learned counsel for the

parties, it is apt to mention that whether a person, who is in jail, can be

detained under preventive detention law, has been a subject matter of

consideration before the Supreme Court very often. In Dharmendra

Suganchand Chelawat & anr. V. Union of India, AIR 1990 SC 1196, the

Supreme Court, while considering the same issue has reconsidered its

earlier judgments on the point in Rameshwar Shaw v. District Magistrate,

Burdwan, AIR 1964 SC 334; Masood Alam v. Union of India, AIR 1973

SC 897; Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508;

Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130;

Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315; Suraj Pal

Sahu v. State of Maharashtra, AIR 1986 SC 2177; Binod Singh v.

District Magistrate, Dhanbad, AIR 1986 SC 2090; Smt Shashi Aggarwal

v. State of U.P., AIR 1988 SC 596, and came to the conclusion that an

order for detention can be passed against a person in custody and for that

purpose, it is necessary that grounds of detention must show that (i)

detaining authority was aware of the fact that detenu is already in

detention; and (ii) there were compelling reasons justifying such detention

despite the fact that detenu is already in detention. The expression

"compelling reasons" in the context of making an order for detention of a

person already in custody implies that there must be cogent material

before detaining authority on the basis whereof it may be satisfied that (a)

detenu is likely to be released from custody in near future, and (b) taking

into account the nature of antecedent activities of detenu, it is likely that

after his release from custody he would indulge in prejudicial activities

and it is necessary to detain him in order to prevent him from engaging in

such activities.

7. Article 22(5) of the Constitution of India and Section 13 of the J&K

Public Safety Act, 1978, guarantee safeguard to detenu to be informed, as

soon as may be, of grounds on which order of detention is made, which

led to the subjective satisfaction of detaining authority and also to be

afforded earliest opportunity of making representation against order of

detention. Detenu is to be furnished with sufficient particulars to enable

him to make a representation, which on being considered, may obtain

relief to him. Detention record, made available by learned counsel for

respondents, reveals that detention order was made on proper application

of mind, to the facts of the case and detenu was delivered at the time of

execution of detention order, the material and grounds of detention and

also informed that he had a right to represent against his preventive

detention. Perusal of overleaf of detention order depicts its execution. A

perusal of the execution report signed by the detenu reveals that one ASI

Manzoor Ahmad took the custody of the detenu. It further reveals that

PSA detention order has been executed on 19.08.2021 and contents of

detention warrant and grounds of detention have been read over to the

detenue in English and explained him in Urdu/Kashmiri language which

the detenue understood fully in lieu of which his signature has been

obtained. It further reveals that detention order (01leaf), Notice of

detention (01 leaf), grounds of detention (02 leaves), Dossier of detention

(03 leaves) Copies of FIR, Statements of witnesses and other related

relevant documents (17 leaves) (Total 24 leaves) have been handed over to

the above said detenue at Central Jail Jammu Kot Bhalwal on 19.08.2021

against proper receipt. It also divulges that detenue was informed that he

can make representation to the Government and detaining authority. The

grounds of detention are definite, proximate and free from any ambiguity.

The detenu has been informed with sufficient clarity what actually

weighed with Detaining Authority while passing detention order.

Detaining Authority has narrated facts and figures that made the authority

to exercise its powers under Section 8 J&K Public Safety Act 1978 and

record subjective satisfaction that detenu was required to be placed under

preventive detention in order to prevent him from acting in any manner

prejudicial to the security of the State.

8. It is long back that an eminent thinker and author, Sophocles, had to say:

"Law can never be enforced unless fear supports them." This statement

was made centuries back, but it has its relevance, in a way, with enormous

vigour, in today's society. Every right-thinking citizen is duty bound to

show esteem to law for having an orderly, civilized and peaceful society.

It has to be kept in mind that law is antagonistic to any type of disarray. It

is completely intolerant of anarchy. If anyone flouts law, he has to face the

ire of law, contingent on the concept of proportionality that the law

recognizes. It can never be forgotten that the purpose of criminal law

legislated by the competent legislatures, subject to judicial scrutiny within

constitutionally established parameters, is to protect the collective interest

and save every individual that forms a constituent of the collective from

unwarranted hazards. It is sometimes said in an egocentric and uncivilised

manner that law cannot bind the individual actions which are perceived as

flaws by the large body of people, but, the truth is and has to be that when

the law withstands the test of the constitutional scrutiny in a democracy,

the individual notions are to be ignored. At times certain activities,

wrongdoings, assume more accent and gravity depending on the nature

and impact of such deleterious activities on the society. It is neither to be

guided by a sense of sentimentality nor to be governed by prejudices. Acts

or activities of individual or a group of individuals, prejudicial to the

security of the State, have magnitude of across-the-board disfigurement of

societies. No court should tune out such activities, being won over by

passion of mercy. It is the obligation of the court to constantly remind

itself the right of society is never maltreated or marginalised by the doings

an individual or set of individuals propagate and carry out.

9. The grounds of detention reveals that the detenue has been indulging in

anti national and criminal activities and remained in contact with anti

national elements, thereby creating a feeling of insecurity, pain and fear in

the minds of general public. The grounds of detention further reveals that

the detenue has been working as OGW with terrorist organization

"Kashmir Tigers" and providing shelter/logistic support and information

regarding movement of security forces to the militants particularly one

Altaf Shah. It further reveals that the detenue is working on the directions

of militants whose aim is to disrupt the peaceful atmosphere and to secede

the UT of Jammu and Kashmir from rest of the country and his immediate

detention is warranted.

10. The law is well settled that this Court in proceedings under Article 226 of

the Constitution is limited to scrutinizing whether the detention order has

been passed on the material placed before it, it cannot go further and

examine the sufficiency of the material. This Court does not sit in appeal

over the decision of detaining authority. This Court cannot substitute its

own opinion over that of detaining authority when the grounds of

detention are precise, pertinent, proximate and relevant. The Court can

only examine the grounds disclosed by the Government in order to see

whether they are relevant to the object which the legislation has in view,

that is, to prevent detenue from engaging in activities prejudicial to the

security of the State and public order. In this regard I am fortified by

decisions rendered by the Supreme Court in State of Gujarat vs. Adam

Kasam Bhaya (1981) 4 SCC 216; State of Punjab vs. Sukhpal Singh

(1990) 1 SCC 35; Union of India vs. Arvind Shergill (2000) 7 SCC 601;

Pebam Ningol Mikoi Devi vs. State of Manipura, (2010) 9 SCC; and

Subramanian vs. State of T.N. (2012) 4 SCC 699.

11. It may not be out of place to mention here that the Supreme Court, in

several decisions, has held that even one prejudicial act can be treated as

sufficient for forming the requisite satisfaction for detaining the person.

The power of preventive detention is a precautionary power exercised in

reasonable anticipation. It may or may not relate to an offence. It is not a

parallel proceeding. It does not overlap with prosecution even if it relies

on certain facts for which prosecution may be launched or may have been

launched.

12. Personal liberty is one of the most cherished freedoms, perhaps more

important than the other freedoms guaranteed under the Constitution. It

was for this reason that the Founding Fathers enacted the safeguards

in Article 22 in the Constitution so as to limit the power of the State to

detain a person without trial, which may otherwise pass the test of Article

21, by humanising the harsh authority over individual liberty. In a

democracy governed by the rule of law, the drastic power to detain a

person without trial for security of the State and/or maintenance of public

order, must be strictly construed. However, where individual liberty

comes into conflict with an interest of the security of the State or public

order, then the liberty of the individual must give way to the larger interest

of the nation. These observations have been made by the Supreme Court

in The Secretary to Government, Public (Law and Order-F) and another

v. Nabila and another (2015) 12 SCC 127.

13. The Supreme Court in Debu Mahato v. State of W.B. case (supra),

observed that while ordinarily-speaking one act may not be sufficient to

form the requisite satisfaction, there is no such invariable rule and that in a

given case "one act may suffice". That was a case of wagon-breaking and

given the nature of the Act, it was held therein that "one act is sufficient".

The same principle was reiterated in Anil Dely v. State of W.B. case

(supra). It was a case of theft of railway signal material. Here too "one act

was held to be sufficient". Similarly, in Israil SK v. District Magistrate of

West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B.

(1975) 3 SCC 527, single act of theft of telegraph copper wires in huge

quantity and removal of railway fish-plates respectively, was held

sufficient to sustain the order of detention. In Saraswathi Seshagiri's case

(supra), a case arising under a single act, viz. attempt to export a huge

amount of Indian currency was held sufficient. In short, the principle

appears to be this: "Though ordinarily one act may not be held sufficient

to sustain an order of detention, one act may sustain an order of detention

if the act is of such a nature as to indicate that it is an organised act or a

manifestation of organised activity." The gravity and nature of the act is

also relevant. The test is whether the act is such that it gives rise to an

inference that the person would continue to indulge in similar prejudicial

activity. That is the reason why single acts of wagon-breaking, theft of

signal material, theft of telegraph copper wires in huge quantity and

removal of railway fish-plates were held sufficient by the Supreme Court.

Similarly, where the person tried to export huge amount of Indian

currency to a foreign country in a planned and premeditated manner, as in

the present case detenu has been apprehended with arms and ammunition,

it was held that such single act warrants an inference that he will repeat his

activity in future and, therefore, his detention is necessary to prevent him

from indulging in such prejudicial activity.

14. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for,

is to prevent, they are all these acts that are prejudicial to security of the

State or maintenance of public order. The acts, indulged in by persons,

who act in concert with other persons and quite often such activity has

national level ramifications. These acts are preceded by a good amount of

planning and organisation by the set of people fascinated in

tumultuousness. They are not like ordinary law and order crimes. If,

however, in any given case a single act is found to be not sufficient to

sustain the order of detention that may well be quashed, but it cannot be

stated as a principle that one single act cannot constitute the basis for

detention. On the contrary, it does. In other words, it is not necessary that

there should be multiplicity of grounds for making or sustaining an order

of detention. Recently, same views and principles have been reiterated by

the Supreme Court in Gautam Jain vs Union of India and anr reported in

AIR 2017 SC 230.

15. For the reasons discussed, the petition fails and is, accordingly, dismissed.

16. Detention record be returned to the learned counsel for respondents.

(Tashi Rabstan) Judge Jammu:

07.02.2022 Pawan Angotra

Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No